The Independent View: 9th Circuit Rejects Challenge to Foreign Donation Ban

A Federal Appeals Court has Rejected a Legal Challenge to Congress’ Ban on most Foreign Nationals Donating to State and Local Election Campaigns.

The 9th Circuit Court of Appeals Upheld the Ban Thursday, saying that a “Summary” Supreme Court Ruling in 2012 Upholding the Foreign Donation Ban left Lower-Court Judges obliged to Turn Down all First Amendment Challenges to the Statute.

However, that High Court Decision, Issued without Briefing or Argument, Dealt with a Lawsuit focused on Federal Elections.

Critics of the Ban have said that Allowing it to Extend into State and Local Political Contests intrudes on the Right of States and Municipalities to Control their Own Electoral Processes.

Writing for a Unanimous Three-Judge Panel, Judge Milan Smith Jr. said Congress’ Constitutional Authority Extends to Setting Rules for Financial Participation in State and Local Elections.

“As donations and contributions have grown more important to the campaign process, so too has concern over foreign influence in American elections,” wrote Smith, an Appointee of President George W. Bush.

“A prohibition on campaign donations and contributions by foreign nationals is necessary and proper to the exercise of the immigration and foreign relations powers. … Accordingly, Congress was within its power when it acted to protect the country’s political processes after recognizing the susceptibility of the elections process to foreign interference,” added Smith in a 50-Page Opinion joined by Judges Paul Watford and Andrew Hurwitz, both Appointees of President Obama.

The Decision on Thursday arose from the Prosecution of American Political Consultant Ravi Singh over Campaign-Related Work he did in San Diego that was Bankrolled by a Mexican National and Real Estate Developer, Jose Azano. Azano spent Long Periods in the U.S. and Owned Homes here but was not a Permanent U.S. Resident, which would have Exempted him from the Ban.

A Jury Convicted both men in the Hidden-Donation Scheme while others Pleaded Guilty. Most of the Work was for Candidates in the 2012 San Diego Mayoral Election, Bonnie Dumanis and former Rep. Bob Filner.

Neither was ever Charged in the Case, although Filner was driven from the Mayor’s Office in 2013 and eventually Pleaded Guilty to State False Imprisonment and Battery Charges stemming from a Sexual Harassment Scandal.

While the Case has No Direct Tie to Special Counsel Robert Mueller’s Probe of Russian Influence on the 2016 Presidential Election, the Appeal was being Closely Watched by some Election-Law Experts because of its Potential to Narrow the Broad Prohibition on Foreign Money in U.S. Campaigns.

Mueller didn’t Directly Charge anyone with Violating that Law, but it was Mentioned in at least One Search Warrant Application and in a Case Virginia Federal Prosecutors are handling related to Alleged Interference in the 2018 Congressional Midterm Elections.

The Prohibition on Foreigners Donating to U.S. Political Campaigns dates back to 1966 and was Originally Enacted as Part of the Foreign Agents Registration Act. A Decade later, Congress made the Provision Part of Federal Campaign Finance Law and later Expanded its scope to Cover State and Local Elections.

An Attorney for Singh expressed Disappointment in the Ruling. “The panel's decision gives short shrift to fundamental federalism principles, denying states and local governments the right to determine who should participate in their own governance. The decision not only ignores the long history in our country of non-citizen participation in state and local governance, but presents no limiting principle,” said Harold Krent, Dean of the Chicago-Kent College of Law. “The decision arrogates to the federal government the traditional power of the states to make … critical policy judgments for individuals living within their own communities.”

Singh was Sentenced to 15 months in Prison in the Case, but has been Free pending a Decision on his Appeal. Azano got Three years and is Due for Release June 2020.

While the Appeals Court Upheld nearly All the Convictions in the Case, it Struck a Single Count against each man, meaning they will have to be Sentenced again although No Major Change to their Sentences is expected.